Joan Biskupic on U.S. Supreme Court nomination hearings, including Gorsuch

Image of Prof. Weinstein and Joan Biskupic in discussion
Visiting Prof. Joan Biskupic discusses U.S. Supreme Court nomination hearings, including Judge Neil Gorsuch. Moderated by Prof. Henry Weinstein.

Recorded at UCI Law event April 5, 2017 

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Joan Biskupic

Joan Biskupic, Legal Analyst and Supreme Court biographer
Visiting Professor

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Podcast Transcript

[Narrator] Welcome to UCI law talks, presenting bold perspectives on law from the University of California, Irvine School of Law. Join the conversation on Twitter at UCILaw #UCILawTalks.

[Henry Weinstein] OK, good afternoon, everyone, and thank you for coming. Today, you all have a rare opportunity to hear a great deal of interesting and insightful information about the Supreme Court, and the Supreme Court nomination process from someone who really knows this process inside out. This year, we have the great honor of having as one of our visiting professors and scholars, Joan Biskupic.

Joan has written three books about Supreme Court Justices. I left at home, my book about-- her book about Justice O'Connor, but here's her book on Justice Scalia called American Original, The Life and Constitution of Supreme Court Justice Antonin Scalia. Her second book is called Breaking In, The Rise of Sonia Sotomayor, and The Politics of Justice. And she is currently working on a biography of Chief Justice John Roberts while she is here teaching.

Joan, while she was a journalist working full time at the Washington Post, she went to night law school, and graduated from Georgetown. I think you all have some idea by now what it's like to just be a full time law student, and doing nothing else. So she did both of those things at the same time. She has covered every Supreme Court confirmation hearing starting with that of Justice David Souter in 1990.

That means that she has covered the confirmation hearing of every current Justice with the exception of Justice Anthony Kennedy, who came under the court a couple of years before she started doing this. But of course, she has written in the course of her other writing, quite a bit about Justice Kennedy. In addition to that, in conjunction with her other work, she went back and read the transcripts of several of the earlier confirmation hearings. So she really knows this process very well, and she's going to talk about it today.

So I want to make a couple of other preliminary remarks. Some of you may have heard or read-- there's sort of one, I guess I'll call it a trope, or maybe even a troll that the Supreme Court confirmation process only has been controversial for about the last 30 years or so. If you hear that from anyone, please be skeptical. I can tell you that this process has been political from the earliest days of the republic, and I will just cite one example.

The first Chief Justice of the United States was a man named John Jay. At the time that John-- shortly after John Jay was confirmed, nearly the same time, another prominent person in the country at that time named John Rutledge, who was a South Carolina lawyer, he had been a delegate to the Constitutional Convention in Philadelphia, he was named to the Supreme Court as an Associate Justice.

Before he even heard one case, Justice Rutledge resigned so he could become the Chief Justice of the South Carolina Supreme Court. I guess that gives you some idea about what high esteem and what power the US Supreme Court had at that time. Anyhow, several years later, when Justice Jay resigned after becoming the Governor of New York, President Washington named Rutledge to be the Chief Justice. He was an interim appointment. The Senate was not in session at that time.

Shortly thereafter, the new Chief Justice, Rutledge, made a very controversial speech about something known as the Jay Treaty, which was something that was wrapping up some of the aftermath of the Revolutionary War, and the 1783 Paris Treaty. A lot of people didn't like what he said, and within a matter of days, the US Senate canned him.

So we had-- and it was for political reasons. So as I say, a lot of people-- there's been a lot of politics in this process from the beginning, even though a number of justices over the past couple hundred years were confirmed even without a roll call. A number of justices were actually confirmed by a voice vote of the Senate, the last being Abe Fortas in 1965 as an Associate Justice. Of course, a few years later, he ran into some problems when they tried to make him the Chief Justice. Anyhow--

So to get started, Joan, why don't you tell us first what you conceive of that the role of a Supreme Court Justice is. Perhaps most recently, we've heard the most definitive statement, and this was by the man you're now writing about, John Roberts. In his confirmation hearing, he likened the role of a Supreme Court Justice to an umpire in a baseball game. He said it was merely a matter of calling balls and strikes. Is that an apt characterization?

[Joan Biskupic] Well, it's a useful characterization for confirmation hearings, but it's not exactly what it's all about. And as just about everyone in this room knows, there are no clear cut formulas in the Constitution. Statutes are often written with plenty of ambiguity. There is judgment in judging. So it's not as easy as anybody thinks.

Just imagine, right now, somebody trying to analyze the due process clause, or the equal protection clause of the Constitution. There is not boiler plates saying exactly how you do it. Of course, there are many, many cases that a jurist can rely on to do that sort of interpretation, but there's all sorts of play in the joints throughout, and that's what I think a lot of people lose sight of when they're hearing these confirmation sessions. They think oh, wouldn't any judge reach that kind of conclusion?

And the example I like to use is the one that's probably most familiar to so many people out there-- the litigation over the Affordable Care Act. A five to four case where the man who we're just talking about now, the Chief Justice of the United States, switched over to the liberal side, finding an unusual rationale to uphold President Obama's sponsored Affordable Care Act. And other conservatives like him said, are you kidding us? That's not within the statute. You've made it up. There are no easy answers. There is not some easy formula that people can turn to in most cases.

HW] So do you think because of that, that you might more closely agree with the position taken by Stanford Law professor? That it's not a matter of calling balls and strikes, but basically, the Supreme Court defines what the strike zone is?

[JB] Well, yes. All courts, over time, define the strike zone through a matter of cases, and building up the case law, and interpretations. Of course, yes. Yes. You were quoting Pam Karlan?

[HW] Yes, I'm quoting Pam.

[JB] Yeah, she's great.

[HW] So you have written, thus far, about three justices in detail. You wrote about Justice O'Connor, Justice Scalia, and Justice Sotomayor. It seems to me that they had a different view. They had different views of what a justice ought to be. Justice O'Connor was known as somebody who's kind of ruling a case by case. Justice Scalia had grander vision of what his role was. Could you talk about that a bit?

[JB] Yeah, Justice Scalia's vision, in fact, has been invoked many times during the Neil Gorsuch hearings because he started from a premise of being a textualist, and being an originalist. His idea was that you look to the understanding of the Constitution at the time it was written in its 18th century roots. And as a textualist, he always believed that things are black and white; Another version of calling balls and strikes.

Justice O'Connor, necessarily-- she came from the legislative branch. In fact, during the whole time that she sat, nearly a quarter century, she was the only Justice who had previously been an elected legislator, and I think that actually influenced a lot of her jurisprudence. She was more interested in looking at compromise. She understood the legislative process.

She understood that there were many shades of gray in legislation, and she was interested in much more compromise. And she also felt like why lock yourself in if you don't need to? Why not decide a case that's before you rather than set down broad principles. Now, it often infuriated lower court judges. It didn't infuriate litigants as much as lower court judges.

[HW] And how would you, thus far, characterize Justice Sotomayor on that continuum of the view of the role?

[JB] That's a terrific question because her role-- she has carved out a separate role in terms of when she will be heard. She has taken very seriously her distinct role in criminal justice cases. She has the distinction of being, right now, the only former trial judge on the Court. She was a prosecutor. So was Sam Alito, but she was really an in the trenches prosecutor in Manhattan.

So she brings an interesting perspective of having been at the scene of the crime, so to speak. So she's always talking about what do juries really hear? What do juries really understand? How are trial judges operating? I would say that she's probably-- well, she definitely is much closer to the Sandra Day O'Connor approach than the broad brush Antonin Scalia approach.

[HW] So you mentioned Justice O'Connor had been a legislator, and there was a time when there were -- I can remember there were periods of time when there were two or three members of the Supreme Court -- Hugo Black, Harold Burton, who had been in the United States Senate. If Judge Gorsuch is confirmed-- and we'll talk more about Judge Gorsuch in a moment-- it will mean that every member of the Supreme Court will have either gone to Harvard or Yale Law School.

And that all but Elena Kagan will have been a Circuit Court judge previous to that, covering about five or six circuits. So it appears that the current route to get to the Supreme Court is you have to have gone to Harvard or Yale Law School, and you have to have a Circuit Court judge. Is that a good mix for a Court? Is that a good mix for the country?

[JB] I think even some of the justices don't think it's the best mix, but they say hey, not our problem. We're just the people who get named. It's in the president's hands. Obviously, we know why this is-- because the groups that are helping a president choose a nominee are looking to a past record. In fact, the Federalist Society and the Heritage Foundation who aided President Trump's team in coming up with these names wanted specifically to see tested conservatives.

They didn't want to leave anything to chance. Nobody wants another David Souter from the right. David Souter in 1990 succeeded William Brennan, and turned out to be a little bit too much-- leaning too much like William Brennan, even though he was an appointee of George H.W Bush, and the mantra among conservatives has been no more Souters. So one way to find out how will somebody rule is to look back, and see how he or she has already ruled already ruled.

So that gives a level of confidence, and I think Elena Kagan's record was sound enough for the liberal President Obama to believe in it, but I believe in her record as someone who would support the law the way he, and his administration saw it.

But I would say that, again, even the justices think we're all sort of looking alike. We don't come from-- we don't have the varied background. They romanticize the way others romanticize the way the Court had been in the past, and I think for all of America, it is nice to have varied experience up there, and it is an incredibly limited experience.

And we sometimes see it in opinions, and we see it-- well, we see it in opinions a lot, but we'd even see it during oral arguments where some of the justices, you can tell, have never, ever been stopped for anything by the police. Not that that should be a pre-requisite to being a justice, but just some normal human experiences that we all go through.

The idea of there was this one incident when they were talking about cell phones where the Chief even expressed surprise why would anybody ever carry two cell phones? And actually, two of the justices, Elena Kagan, and Sonia Sotomayor said well, we do. I mean, privately they said they do because some of us have gotten accustomed to having the cell phone for business, and having the cell phone for personal life, but he had never been in that position.

HW] Speaking of a lack of certain forms of human experience, perhaps you could recount for the audience, a discussion that occurred on the bench involving the treatment of a high school girl, and some comments in exchange between Justice Breyer, and some of the women justices.

[JB] Oh, well, and at this time there was only one woman justice.

[HW] Pardon me.

[JB] OK, so I'm going to take you back to an odd period in 2009. It's after Sandra Day O'Connor, our first female justice, has left the bench. She had left in January of 2006, succeeded by Samuel Alito, and it's before Sonia Sotomayor has come on the following summer. And only Ruth Bader Ginsburg is up there, and the justices have a case from Arizona in which a 13-year-old girl had been strip searched after administrators got a tip that she had had some illegal drugs.

Turned out that she just had some aspirin on her. A strange set of circumstances led to this but, she then sued. Brought a civil rights complaint saying she should not have been strip searched, and it turned out the school administrators who had done this-- one was a nurse, and one was a deputy principal or something like that-- and they both happened to be women.

So from the bench, the questions on the part of the male justices mainly were well, what's the big deal? She didn't have to take off all her clothes. She had to lift up her shirt. She had to show her undergarments. It wasn't as extensive as you'd think of Guantanamo or anything, but they felt like, well, this shouldn't have been as offensive as you think.

So Justice Ginsburg was visibly upset by that line of questioning, and I happened to interview her a couple of days later. And I said to her, you seem very distraught by the questions and comments of your male brethren, and she said "They've never been a 13-year-old girl." Well, I wrote up a story about what she said, and then heard from various male justices saying they had no idea that she had felt this way.

And we ended up with a split decision that some observers thought maybe they reconsidered their mindset based on what their one female colleague had said, but that was it. The other eight certainly hadn't been a 13-year-old girl, and didn't seem, at that moment, at least in Justice Ginsburg's mind, to be able to put themselves in her shoes.

[HW] Great. OK, so let's turn back to the confirmation process. You've covered, as I said, quite a number. I think it's nine or 10 by now. Tell us a little bit about just the atmospherics about what it's like to be in that room, and then also the process leading up to it, to getting into the room.

[JB] Well, I actually find it really exciting. I like these events. I like so much about the Supreme Court in terms of covering it, trying to show what it's really like up there, and just to remind everyone how we got to this point. OK, Justice Scalia dies on February 16th. It's a real shock, even though he's just a few weeks before his 80th birthday, but he was such a vibrant presence that it catches everybody off guard.

It doesn't catch Mitch McConnell off guard, though, and he pretty quickly says no way, no how will President Obama get any nominee through. President Obama still does nominate someone, of course. On March 13th, he nominates Merrick Garland, who at the time, was a 63-year-old moderate Chief Judge of the DC Circuit, someone who had drawn bipartisan support when he was named to that circuit.

He was essentially, what would appear to be a compromise candidate, but Mitch McConnell had laid down a marker, and all of his troops stuck with him. So Merrick Garland didn't even get a hearing. Turns out Donald Trump wins in November. Donald Trump, as part of his campaign, had put out a list of 21 names. First in May, 10 names, and then the following September, 11 names. On that second list was Neil Gorsuch based in Denver on the US court of Appeals for the Tenth Circuit.

Donald Trump wins. He goes through the screening process, and I cannot stress enough how much the folks helping him screen candidates did not want a David Souter. They for sure were looking for someone tried and true. Donald Trump had vowed to appoint someone who would reverse Roe v Wade, who would be thinking like him, who would thinking along the lines of Justice Scalia.

So we get to this moment, and of course, there's who's up, who's down, all sorts of rumors, and it turns out to be Neil Gorsuch in a big roll out from the-- prime time address to the nation by Donald Trump. In fact, when he walked out, and said, "Are you surprised?" It sort of was almost like some kind of beauty contest thing, but it was Neil Gorsuch--

[HW] Well, that was also because they put out a statement saying that he'd invited more than one person to be there.

[JB] Oh, I know.

[HW] I think that was fake news.

[JB] For Judge Hardiman on the Third Circuit, who had kind of got enlisted to do this also, it was painful, frankly. OK, but you get this guy, and he has-- just to remind everybody of his credentials-- he went to Yale Law School. He went to undergrad at Columbia. He was a Marshall Scholar. He had been hired by Byron White, also from Colorado, to be a law clerk to him. He certainly had the right stuff according to the usual pattern.

And then Chairman Chuck Grassley of the Senate Judiciary Committee sets the hearing times, and it's really-- it is exciting. So you spend a lot of time looking through the man's record. You wonder how will he present himself. He goes through these courtesy visits with the senators that are so important because he's rehearsing lines. Everything is staged.

That's not necessarily bad. It's not bad that everything has been prepared because we all should prepare. We should prepare for everything. So he's gone through all these murder boards. He's been tested. Different colleagues, and people from the White House team are playing the roles of different senators. So when he sits in that chair, and he reads his opening statement, he has rehearsed that many times. He has rehearsed many, many versions of answers to the kinds of questions that we'll see a little bit of today.

And as a reporter, I am really excited to be there. I'm teaching this academic year. So normally, I wouldn't have been out there, but CNN flew me back to cover the hearings, and I was really excited to do it to see what will this judge be like? How will he present himself? How will the senators react? What kind of public response will we see? I think there's a lot of suspense in the moment.

And it turned out, he wasn't as predictable in various ways. He turned out-- his personality came through in a different way than some of his writing, and his answers, I thought, were a little bit surprising in some ways in terms of how evasive he was, more so than other nominees.

[HW] You, having been to a number of these things, also picked up on something visual in the hearing room that you thought was very significant about the way he was trying to present himself. Why don't you tell the audience about that.

[JB] I don't know if you--


[JB] OK, then you'll see. So I'm watching this thing, and I'm thinking, where's the usual draped table? Because if you've watched enough of these, you remember that typically, there's a long table. Clarence Thomas sat at one that was draped in a green cover. The Chief Justice Roberts and Samuel Alito sat at this long table that had a beautiful red cover at it. Elena Kagan and Sonia Sotomayor sat a long table with a dark covering, and that's what I was-- immediately I thought, oh my gosh, who shrunk the table?

Just looking at this thing, and then it wasn't even a table, it was a desk. The way he was taking notes as senators were speaking, it almost looked like some sort of functionary there. And so I was e-mailing a bunch of people saying, doesn't this look strange to anyone? And it was like, no, no, no. You must be just imagining. So of course, I checked myself. I looked at images, and yes, there were these long draped tables.

So then I emailed-- and then, obviously from what he was presenting, he was trying to minimize everything. Minimize the role of judges. He kept saying it's up to Congress. Not a single judge does this. Not a single judge does that. And I felt like this was-- at least, at first blush, it seemed like this was part of the atmospherics. So I then, I just thought I'm getting to the bottom of this. It can't just be my imagination.

So I e-mailed an aide to Senator Feinstein, the ranking member saying, do you guys know whether you encouraged him to sit at a smaller desk, or what was going on? And he said no, I didn't even notice. So then I e-mailed Chairman Grassley's press secretary or assistant, and heard back that this is what he preferred. He chose, out of all these past nomination hearings, he chose to sit at this smaller disk. Maybe he wanted it to seem more intimate, more modest.

But again, I use that in the lead of one of my stories, one of my analyses just to again, reinforce the idea that there's a message here. These things are nationally televised, and there's a message, and I thought it reinforced what Neil Gorsuch's message obviously was is there's not much to see right here. I am a very moderate, modest individual. Look at these trappings.

[HW] OK, so beyond the imagery, one of the things, of course, that's become sort of a running story line in the last many confirmation hearings is just how much a nominee to the Court should be required to answer about past rulings, potential cases coming in the future, judge's writings. What are your thoughts about the whole issue because this is sort of like-- it's almost like watching a boxing match with bobbing and weaving.

[JB] Right, and I do not think that any individual should say how he or she would rule in a case. That wouldn't make sense. As Judge Gorsuch even said, you don't want to promise something. Of course, senators were more interested in what he might have promised implicitly to his handlers, not to the American people, or to the senators. But it makes all the sense in the world that you want an individual who will have an open mind.

But you want to have an individual who's thinking you can at least get a handle on. And I have to say, David Souter, for those of us who sat for all of his hearings in 1990, did reveal a much broader notion of substantive due process that then we might have thought he would have given since he was an appointee of George H.W Bush. But then that played out in his rulings.

So if you were paying attention, you'd think wow, he does sound like he'll be a little different than what has been advertised here. And I think the trick is for these nominees to come with something. Come with something that will reveal themselves, and even though Justice Ruth Bader Ginsburg was, in 1993, an individual who said, I'm not going to give out any hints, any predictions of what I'm going to do, she still talked about what she had written before, talked about some of her broader theories, talked about other cases.

And that's where this nominee frustrated many of the Democrats. He didn't want to say anything really positive or negative about rulings that are decades, decades old, and that was frustrating to them. And Justices Alito and Roberts certainly didn't want to tip their hand, but they would acknowledge their sentiment about past rulings in a broader sense.

[HW] And in some of these proceedings, I think the nominee has said things that sounded almost inherently implausible. I do remember watching the Clarence Thomas confirmation hearing, and he said he'd never had a discussion about Roe v Wade.

[JB] OK, I want to say something about that, though.

[HW] Go right ahead.

[JB] OK, because I know that sounded really implausible. I know that did. I get that. But I just want to say that was in 1973, and in 1975, no one asked Justice John Paul Stevens about Roe v Wade. Roe v Wade was incredibly controversial. It happened on the day-- it got handed down the day that LBJ died. There were two huge news stories that day.

I'm not here to say that Clarence Thomas didn't discuss it. I'm just saying that it took on a lot more energy, and controversy with the moral majority, and President Reagan's campaign and presidency. So Justice Stevens even said to me, I remember when he was the one who-- in a private session I had with him, pointed out that he wasn't asked about that decision in '75 because it didn't have as much social and moral force right there and then in '73 as it grew.

[HW] Right, but Justice Thomas was not asked simply if he'd not had a discussion about that at the time the ruling came out. It was a blanket statement, and by the time he came to his hearing--

[JB] Was it?

[HW] Oh, yeah. It wasn't like somebody-- yeah, he just said that he hadn't discussed it, and by then, of course, you'd had a whole evolution of law-- cases you wrote about, Webster. Planned Parenthood versus Casey.

[JB] And he was in the Reagan administration. Actually, Planned Parenthood versus Casey was after him.

[HW] Right.

[JB] After he came on. OK, so I'm just saying that sometimes you don't know for sure. There are individuals who-- sometimes you think well, maybe they're listening to the question in a certain way. All right, all right.

[HW] So you're saying that they shouldn't-- nobody should say how they're going to rule on a case that's going to come, but now it seems like somebody almost-- the mantra seems to be if somebody is asked about a prior case, the line this time seemed to be, well, that's the law. I will follow the law with no expression about often whether he thought the decision was good or bad.

[JB] Well, here's the thing, I think. This is the only time the public and the Senate can really get to this individual. They're appointed for life for goodness sakes. Your children and your grandchildren will live under the law of Justice Neil Gorsuch. I think that the wise course of action when an individual is preparing for testimony is to bring something.

Bring something that will reveal the individual. You have the courage of some sort of conviction in there. Don't say hey, that transgender bathroom thing, I'm waiting for that one. You just don't want to -- of course, you're not going to say anything like that, but reveal a little bit of your thinking so that the senators get some sense. So that the American people get some sense.

And the Republican senators this time around had just essentially decided we don't want to mess with the formula here. We've got 52 votes. We want to get this done. It's very polarized, but I think there was much more of a meeting ground. And we've seen it through the years that even Justice Scalia who said publicly, boy, did I get a lot of softballs, still wanted to at least show a bit of what he was all about. But now, again, that was 1986.

[HW] My recollection was he didn't get a no vote.

[JB] He didn't.

[HW] 98 to nothing, or something like that.

[JB] That's right.

[HW] So most of the commentators have said the Judge Gorsuch emerged from the hearing largely unscathed. Nothing happened that seems like it's going to change the boat. However, there were a couple of particularly dramatic moments in the hearing. One involved an exchange with Senator Durbin over educational rights for disabled-- pardon me, if I'm using the wrong word, but children with forms of learning disability.

And then there was something even more dramatic involving what has come to be known as the frozen trucker case. And I know a lot of you didn't get to see this, so we're going to show some tape in a moment, but just in brief summary, what you will see is Senator Franken of Minnesota, who's been on the Judiciary Committee for eight years-- some of you may remember him from his prior life when he was on Saturday Night Live, which is relevant to what happens here.

And in this particular case, a trucker was fired by a company for something that happened when his truck became -- a truck carrying a trailer became disabled on a night when the temperature was 14 degrees below zero. He was fired, just in brief. Case went to an administrative law judge in the labor department who reversed the firing.

That decision was appealed by the company, and then in a three to zero ruling, the appellate court in that agency upheld the lower court. So this case is then appealed as agency rulings are to a circuit court, in this case because the company was based in Kansas, which is within the realm of the Tenth Circuit. This case comes to Gorsuch's court. And there was a ruling in this case of two to one.

Two judges, I believe both of whom had been appointed by President Clinton, upheld the ruling. Give the trucker his job back, and give him back pay, and Gorsuch dissented. What we're going to do is roll some tape now of the exchange between Franken and Gorsuch. It runs about five minutes, and then we'll have Joan talk about it a bit.

[JB] Am I blocking anybody's view? You can see? OK, great.

[SENATOR FRANKEN] No animal abuse laws.

[JUDGE GORSUCH] You sound like my daughters on that score, senator.

[SENATOR FRANKEN] You know, I wanted to get to some questions, but first I want to talk about Trans-Am trucking because Senator Durbin brought it up, then Senator Lee brought it up. And I want to just go through the facts real quickly because I understand the reasoning behind your dissent, but I'm actually kind of puzzled by it as well. OK, so Alphonse Madden is a truck driver.

He's made a stop off the interstate at 11:00 p.m.. He comes back on, or he's about to come back on, notices his brakes are frozen on his trailer. OK, so he decides it's dangerous to go with frozen brakes onto the interstate -- frozen brakes on my long trailer. He's in the cab, and he calls in for -- he pulls off to the side, calls in for a repair. Gets the dispatcher. The dispatcher says well, wait. Hang on there. We'll wait for it.

OK, a couple of hours goes by. The heater is not working in his cab. It's 14 below zero. 14 below zero. He calls in, and he says my feet, I can't feel them. I can't feel my feet. My torso, I'm beginning not to be able to feel my torso. And they say hang on. Hang on, wait for us. OK, now he actually falls asleep, and at 1:18 a.m. his cousin, I think, cousin calls him, and wakes him up. And his cousin says that he is slurring his speech, and he doesn't make much sense.

Now, Mayo Clinic in Minnesota says that is hypothermia. And he had fallen asleep. If you fall asleep waiting in 14 below zero weather, you can freeze to death. You can die. He calls them back, and his supervisor says wait. You've got to wait. So he has couple of choices here. Wait or take the trailer out with the frozen breaks onto the interstate.

Now, when those brakes are locked, and you're pulling that load on a trailer with those brakes lock, you can go maybe what? 10, 15 miles an hour. Now what's that like on an interstate? Say you're going 75 miles an hour. Someone's going 75 miles an hour, they come over hill, and slam into their trailer. Also he's got hypothermia. He's a little woozy. Probably figures that's not too safe. I don't think you'd want to be on the road with him. Would you, judge?


[SENATOR FRANKEN] You would? Or not? It's a really easy yes or no. Would you like to be on the road with him?

[JUDGE GORSUCH] Would I want to be on the road with him?


[JUDGE GORSUCH] With the hitch trailer or the unhitched trailer, Senator?

[SENATOR FRANKEN] Well, either, but especially with the hitched trailer with the locked brakes.

[JUDGE GORSUCH] No, I don't think that was a serious option.

[SENATOR FRANKEN] OK, I wouldn't want to be there either. And so what he does is he unhitches it, and goes off in the cab.

[JUDGE GORSUCH] And then, I believe, he comes back 15 minutes later.

[SENATOR FRANKEN] And he comes back after he gets warm so that he can be there when it gets repaired.


[SENATOR FRANKEN] OK. He gets fired. He gets fired, and the rest of the judges all go that's ridiculous. He shouldn't-- you can't fire a guy for doing that. There were two safety issues here. One, the possibility of freezing to death, or driving with that rig in a very, very dangerous way. Which would you chosen? Which would you have done, Judge.

[JUDGE GORSUCH] Oh, Senator, I don't know what I would have done if I were in his shoes, and I don't blame him at all for a moment for doing what he did do. I empathize with him entirely.

[SENATOR FRANKEN] OK, we've been talking about this case. You haven't decided what you would have done? You haven't thought about for a second what you would have done in his case?

[JUDGE GORSUCH] Senator, I thought a lot about this case because--

[SENATOR FRANKEN] Then what would you have done?

[JUDGE GORSUCH] I totally empathize, and understand--

[SENATOR FRANKEN] I'm asking you a question. Please answer the question.

[JUDGE GORSUCH] Senator, I don't know. I wasn't in the man's shoes, but I understand why--

[SENATOR FRANKEN] You don't know what you would've done. OK, I tell you what I would have done. I would have done exactly what he did, and I think everybody here would have done exactly what he did. And I think that's an easy answer. Frankly, I don't know why you had difficulty answering that.

OK, so you decide to write a thing in dissent. If you read your dissent, you don't say it was sub-zero. You say it was cold out. The facts that you describe in your dissent are very minimal. But here's the law, and you go to the language of the law, and you talk about that. I go to the law.

A person may not discharge an employee who refuses to operate a vehicle because the employee has reasonable apprehension of serious injury to the employee, or the public because of the vehicles hazardous safety, or security condition. That's the law. And you decided that they had the right to fire him even though this law says you may not discharge an employee who refuses to operate a vehicle because he did operate the vehicle. Is that right? That's how you decided, right?

[JUDGE GORSUCH] That's the gist of it.

[SENATOR FRANKEN] Well, no. Is that how you decided? That's what you decided.

[JUDGE GORSUCH] Senator, there are a lot more words and opinions, both in the majority by my colleagues, and in dissent, but that-- I'm happy to agree with you. That's the gist of it.

[SENATOR FRANKEN] Right. Well, that's what you've said. Look, I'm not a lawyer, but I've been on this committee for about eight years, and I've paid some attention. So I know that what you're talking about here is the plain meaning rule. Here's what the rule means. When the plain meaning of a statute is clear on its face, when its meaning is obvious, courts have no business looking beyond the meaning to the statutes purpose, and that's what you used, right?

[JUDGE GORSUCH] That's what was argued to us by both sides, senator.

[SENATOR FRANKEN] But that's what you-- that's what you used.

[JUDGE GORSUCH] Both sides argued that the plain meaning supported there--

[SENATOR FRANKEN] And you used it to come to your conclusion.

[JUDGE GORSUCH] But both sides did.

[SENATOR FRANKEN] But the plain meaning rule has an exception. When using the plain meaning rule would create an absurd result, courts should depart from the plain meaning. It is absurd to say this company is in its rights to fire him because he made the choice of possibly dying from freezing to death, or causing other people to die possibly by driving in an unsafe vehicle. That's absurd. Now, I had a career in identifying absurdity. And I know it when I see it, and it makes me-- it makes me question your judgment. You stopped by my office a few weeks ago. I asked you about Merrick Garland. I had read somewhere that after you accepted--

[HW] OK, thank you. So there you have-- I'm going to ask Joan a couple of questions, but before we get there, I just wanted to say this is sort of one of my pet bugaboos, or things that I think is important about. In law school, we talk about a lot of concepts. We talk about a lot of principals. We talk about a lot of grand things. And again, this is an example of something that I think is important. Facts matter. Facts matter. Human beings matter. So what I wanted to ask you about this are basically three questions.

One, your thoughts about his opinion about the meaning-- this is a decision that has long footnotes on both sides about what the meaning of the word operate is, with conflicting interpretations from dictionaries. So what did you think of his decision? How do you think he handled that? And is this exchange representative of his thinking, or mindset, or is it an aberration as his supporters would say?

[JB] A couple of things. First of all, that was probably the most dramatic cinematic moment of the hearings, and it took a non-lawyer to pull it off. Obviously, Senator Franken is in the drama business-- was in the drama business. So he did a really good job of eliciting it, and let me say something about this opinion.

It's not unfair to focus on this opinion. It came out in August of 2016. He wrote it less than a year ago. This was not written when he was a very green judge. He had a lot of thought behind it. Not just on the facts, how he was going to interpret this case. Senator Franken nicely pointed out his use of the word cold rather than sub-zero. But at one point, the judge also refers to the situation being unpleasant.

Another sort of mild word for what was happening with this man. This man, who apparently has not been able to work since. But the other thing that's in this opinion that was pointed out by many, many people -- people who are critical of Judge Gorsuch, but even some people who would be little bit more neutral. And one even showed up on a blog post today by Eric Posner noting that -- questioning what was behind Judge Gorsuch's thinking here. Why did he have to write what he wrote?

And he points to the fact that Judge Gorsuch uses his opinion not just to reject the truckers claim, but to make a broader statement about how judges should interpret congressional statutes that may or may not be ambiguous. And in some ways, it's kind of baked to Federalist Society people because it talks about, again, the role of the judges -- a judge isn't there to fix what Congress didn't say explicitly.

First of all, he, unlike his colleagues, reads the law differently, and doesn't find an exception here for this case of this man, Alphonse Madden. But he also wants to take a stand on behalf of the judiciary. Something that frankly, Justice O'Connor wouldn't have written like this. I don't think Justice Ginsburg would. Maybe Justice Scalia would have. But to say I just want to remind you people about what we're all about. Someone like me is all about narrowly interpreting what rights and benefits are in statutes.

And as I said, some critics felt like it was red meat or bait for people who would be looking for the next Supreme Court nominee. It came out in August between the two lists. I, again, am more apt to take people at their word, but there is a sense of timing here, and a sense of mission that comes through in this that critics of his have pointed to.

[HW] Thank you. In all the other hearings that you've covered, do you recall any moments that had any drama if this type?

[JB] OK, well, for starters we have in 1991, high tech lynching. So you have Clarence Thomas when he is accused of the Anita Hill claim about sexual harassment. That was very dramatic. When he categorically denied everything, and said this is a high tech lynching.

And I was in the room for that, and I have to say just as an aside not only did I work full time when I went to law school, I hate to even mention this, I had a baby in the middle of it, and I was pregnant with that baby during the Clarence Thomas hearings. And she has zero interest in law and journalism. She's a theater person, but she's fascinated by the whole Clarence Thomas, Anita Hill thing, and she thinks it's because she was in utero during it. But anyway, so there was a dramatic moment.

[HW] And apparently got bad vibes from the law while in utero.

[JB] Yeah, right. So she's like I'm going in this other direction, the creative arts for me. But anyway, so I was there, and that was a very dramatic set of hearings. And just to let you know, you might not have realized that Clarence Thomas had actually gone through one full set of hearings, and they were within days of voting on his nomination on the floor when all of a sudden the Anita Hill information came to light, and he had to come back for a whole another set of hearings.

OK, so that was dramatic. We've had a couple of smaller dramatic exchanges. There was one-- I'll mention just a couple. During Chief Justice John Roberts hearings, Chuck Schumer, who's now the minority leader in the Senate, was getting incredibly frustrated by John Roberts answer saying, I ask you about a ruling, I ask you about your position, and you want to detail things to me. It's as if I'm asking you what's your favorite movie, and you start to tell me well, let me tell you about movies, dramas versus comedies, and all that.

And John Roberts, who was ready for anything, as Chuck Schumer is complaining about this, and they're about to wind up says, Casablanca, North by Northwest. He's ready to give -- actually, a harmless specific. And then two last ones that I'll mention that are more in the humorous vein just because they're memorable, both prompted by Lindsey Graham. In his first opening remarks to Sonia Sotomayor, says -- who was the first Latina nominee -- he says unless you have a complete meltdown in front of us, you're going to be confirmed.

And the other thing that Lindsey Graham elicited was to Elena Kagan. Where were you on Christmas Eve? I forget which date it was, and she said, well, of course like any Jew, I was at a Chinese restaurant. When she was trying to figure out the Christmas Eve bomber, and whether he had been read his Miranda rights.

[HW] Do you think that there's any prospect that this process will change at all in the near future? Remember, I think it was not until 1925 when President Coolidge nominated Harlan F. Stone to the Court. I think he was the first guy that even came up there to take any questions. So there was a time when this was a lot simpler process for a lot of people.

[JB] Right, and Sandra Day O'Connor's was the first televised. No, it's not going to change. There is no -- the nominee has no incentive to tell more. Remember, Robert Bork, who said well, this is the intellectual feast and all that, and we saw what happened Robert Bork, but it wasn't just because of that.

So the nominee certainly has no incentive to tell anything that could be troublesome. But the nominee does have an incentive to at least play. To at least bring something to try to reveal herself, himself because now, once someone gets on the court, it takes an impeachment. It's lifetime.

[HW] And that's happened with lower federal court judges, but no Supreme Court--

[JB] And the closest that we've gotten was Abe Fortis in '68, who was forced off at the threat of impeachment.

[HW] Right. And although I'm old enough, I may be the only person in this room old enough to remember when I was driving through California with my parents after 1954, driving up to Northern California, there were billboards saying impeach Earl Warren because of the Brown decision. So there were things like that.

All of this points to the Court being -- I know I said at the beginning that it's been political in some way at all, but it seems to -- I was wondering, seemed to have gotten more partisan. When Earl Warren was nominated for the Supreme -- by President Eisenhower to be the Chief Justice in 1954, 1953, Eisenhower thought that he'd get a conservative judge because Warren had been a D.A., an Attorney General, a moderate governor of California, and he was not happy with what he got.

The vetting now seems to have become much more intense. You were saying no surprises in regard to Souter, but there were certainly people that were unhappy with some of what they thought were surprises even before Souter.

[JB] Oh, that's right. That's right, and that's why the powers that be think it's safer to go with someone who has a record that they can examine, and someone who not just would have a record of rulings, but maybe also has a record of partisan participation. Someone who's on their team, so to speak.

[HW] And in recent years, the last several, not many surprises, and we've had -- the history books were full of some surprises, including Hugo Black, who early in his life, had been a member of the Ku Klux Klan, and a lot of liberals didn't want him on the Court, and he turned out to be one of the most liberal justices probably ever on the court.

[JB] Right. I think probably the most surprising thing that one would mention at this point would be the Chief Justice's vote in the Affordable Care Act when he flipped over, but I think that that also is explained by his own personal interest in the institution, and larger concerns that he just was ready to exercise.

[HW] So let me ask you a couple more things. Right now, in political circles, there's something of a debate about what the Democrats should do. They don't have the votes to stop Gorsuch because the Republicans have a majority of -- well, it was 52 to 48, and there's already three Democrats who have said that they will vote for Gorsuch from states that are sort of red states -- West Virginia, North Dakota, and Indiana.

But Schumer has called for a filibuster. He says that the seat was stolen from Garland. That they need to basically draw a line in the sand, or something like that. And other people say well, they should hold their powder till the next nominee when the Court could really turn. What is your thought about that?

[JB] OK, the truth is the Court is going to turn much more the next time around because it will likely be Ruth Bader Ginsburg, who's 84, or Anthony Kennedy, who's 80, and will turn 81 in July. Justice Ginsburg is liberal, of course. Justice Kennedy has been a very important swing vote for abortion rights, affirmative action, and gay marriage.

So the appointment of a Donald Trump jurist, if he does the same vetting process, if he goes with a sure fire conservative, will really make a difference. So you can see why some Democratic and liberal partisans are saying hold off, hold off. But I think right now it's the base that's very much driving what Chuck Schumer is doing.

Face it, the people on the far left have had it. They're angry, and they think can't you please stand up for something here? So I think there's a lot of pressure on Senate Democrats that way, and I think there's also some thinking that wait for what? They'll eliminate the filibuster next time around anyway. Now or then, the outcome is going to be the same. I don't have a strong view for either side on this, but I do believe that the next nominee will be more consequential.

[HW] Great. I think we can take a few questions. Anybody want to fire a question? Yes, Jennifer.

[AUDIENCE] You read a lot about how he's a very appealing person, and is sort of a charming person. I get none of that. He's low on my list of people I want to have dinner with based on what I can see. I'm sure the feeling would be mutual if [INAUDIBLE].


[JB] I don't think so. I don't think so.

[AUDIENCE] I was wondering if you got a sense of charisma, charm, appeal in there, or is this just more sort, you see what your inclined to see?

[JB] That's an excellent question because the question came from many others along those lines. A columnist in the Atlantic wrote recently who would want to be on a plane next to this man for any long flight? I don't know.

[HW] Without identifying names, might I say -- no, no, no, I know Garrett absolutely wrote that in public, but you also told me -- and I'm not going to out the people -- that you said that there were some people that went into the hearing that are in my former line of work, your current line of work, who were favorably inclined toward him, and by the end of hearing were disinclined, it sounded like.

[JB] Well, and I think it goes to the point that you question whether someone was genuine. What were you hearing? What you were hearing, maybe that's what you were responding to. Is that a real person there, or is he just mouthing what he believes will help in this situation? And I think that's a question that many people had. It doesn't entirely go to his -- it doesn't really go to his jurisprudence. It goes to what kind of individual are we seeing here.

And I had not met him before then, and I certainly felt that what was portrayed was different than what I imagined in his writings, and what I had imagined from people who I know who really like him, people who've worked with him, and served with him, and been on committees with him. So we will have a lifetime to see whether the picture we got here is the full picture.

[HW] Yes, sir.

[AUDIENCE] I just had a question about-- we mentioned the elimination of the filibuster, and the nuclear option. What do you think the future of the Court is going to be if you no longer need to have 60 votes? And does that make the candidates more extreme? Does that increase polarization on the Supreme Court?

[JB] I think it could, and I think this is the risk that the Court itself has, and the Chief Justice has spoken to that. Right now, every liberal in that Court was appointed by a Democrat. Every conservative was appointed by a Republican. This is a very polarized five, four court when you think of with Justice Scalia, and likely now with Justice Gorsuch, if all goes as Mitch McConnell plans for Friday.

So then what does that do to the public? We know that Congress is very polarized. We know that since day one, this has been a political process. But there is a certain belief in the impartiality, the neutrality, of course, that is very, very important for having all of our disputes end up there.

And I think that the justices themselves worry about the competence that someone like you, someone like all these students would have been in the Supreme Court, given this nomination process. In fact, the Chief Justice in -- it was January of 2016, just a couple weeks before Justice Scalia's death, where he said exactly what you're suggesting here. Is that the process itself can taint what the Supreme Court ends up with.

[HW] Yes.

[AUDIENCE] I know you just said that the personality of the Justice may not affect the jurisprudence. Or that doesn't affect the jurisprudence, but I would push back on that, and say that given the fact that the reasonable person's standard, and there's so many aspects of case law, or legal standards that are based on reasonableness.

And I look at someone like that, and the frozen trucker case, and about what he thinks is reasonable, and his background, and actually, the entire Court would have very elite people that may not have had shared common experiences. Do you think that's detrimental to the Court when you're looking at defining reasonableness, and how that applies to so many different legal standards.

[JB] Yeah, let me clarify on what I meant by personality. There's one thing to have a meal with someone, and you want to sit next to him, and there's another thing about their background, and their character that could influence things. So I was speaking more to Jennifer's question about what is his personality like. But in his case, we can also talk about what this kind of judgment that Senator Franken was trying to elicit.

And I actually agree. I get a lot of resistance from my biographical subjects on that. They'll say oh, come on. You want to talk about where I was raised, what I was like, what my parents were like. How could that have anything to do with how I'm going to rule? But I actually think that obviously does play into people's values, and decisions.

And Justice Scalia was always saying -- almost a version of I call them, just as balls and strikes, but he was the son of a textualist. A man who was very much into translating texts. He was a professor of romance languages, and he had a certain idea of the world that was more black and white. So I do think that that does necessarily influence where somebody comes from as he or she is looking at the law.

So I understand your question, and what I was talking about is the personality thing. The personality thing does make a difference. And a couple of my subjects, when I would -- frankly, it happens all the time when I'm talking to justices about their colleagues. You get the annoyance factor. They'll talk about whether they want to pay attention to a colleague or not because they might be difficult to just deal with, irrespective of how they grew up.

[HW] And picking up on your point, one of the things that Justice O'Connor said at one point was is that she felt that she, and every member of the court that she served on, while the time that they served with Thurgood Marshall, greatly benefited from the perspective he brought from his life experiences, which were very different than theirs. Yes, Britney.

[AUDIENCE] So I was wondering if you picked up on any rumors or tea leaf readings as to Justice Kennedy's future in light of Judge Gorsuch's nomination and, likely, confirmation.

[JB] Every day it's different. Every day I hear something different. His wife wants him to go. His wife wants him to stay. His children say this. His children say that. His colleagues -- I know that there is a general -- there was a general assumption among his colleagues that his days could be numbered, but that was before the events of the last 10 months, essentially.

That he was looking toward a new chapter in his life, and I think that just as it's hard to predict Justice Kennedy on the law, I think right now it's hard to predict what he will do this June, or the following June. If I had to bet money, I would say it would be more likely next June, but I will certainly be ready.

[HW] Other questions? Well, thank you very much.

[JB] Sure, thanks.

[Narrator] Thank you for joining us for UCI Law Talks, produced by the University of California Irvine School of Law.